Australia: Blurring the lines: social media and the implications for employees

Australia has some of the highest per capita use of social media in the world. While social media offers a range of communication channels locally and internationally that are without cost to users, it is increasingly encroaching on our working lives; an effect its creators might never have contemplated becoming a legal issue.

The most significant legal challenge that social media presents to employers and employees alike is the blurring of personal and professional lines when employees use social media. It has been recognised by the courts that the "separation between home and work is now less pronounced than it used to be" (Deputy President Swan in Damian O'Keefe v Williams Muir's Pty Ltd.)

Facebook—upcoming privacy change

A recent development by Facebook to implement the removal of a privacy setting "Who can look up your Timeline by name?", which allows users to prevent their individual profile from being searchable on Facebook, has sparked discussion surrounding the future degree of privacy protection afforded to Facebook users. The change will be implemented in the coming weeks according to Facebook's Chief Privacy Officer, Michael Richter.

While users can currently opt in to hide their profile in Facebook search results, the change means their profiles will become searchable on Facebook and likely be searchable through external search engines, for example, Google.

The issue appears to have created a divide between users. Some users argue that due to the service being "no cost", they must simply abide by the terms and conditions of use that are subject to change at the whim of the service provider. Other users argue that the service, since its inception, has had an inbuilt privacy feature providing control over what users may consider to be sensitive personal information, or information that they do not wish to be publicly available.

On 10 October 2013, Richter posted on the "Newsroom" component of Facebook that "the best way to control what people can find about you is to choose the audience of the individual things you share" and, regarding posts pre-dating the privacy change, "with one click, you can limit the audience of posts you've shared in the past". Another option for users concerned about the impact of the privacy change is to cease using and delete their Facebook account.

Recent development in the law

A recent case heard in the Federal Circuit Court, Banerji v Bowles [2013] FCCA 1052, touches on the issue of "blurring" when it comes to social media use by employees. In this case, a public servant argued that her social media activity (tweets made to some 700 followers) was "protected by the constitutional right / freedom of political communication" and was a "simple expression of political opinion, made in her own time away from work".

Justice Neville made the finding that there is no unfettered right or freedom of political expression, and that politically charged comments on Government policy coming from an anonymous Twitter account constituted a breach of the Government's social media policy.

This case serves as a reminder that even in circumstances where social media use is external to the workplace, away from the employee's place of employment and outside working hours, the consequences may impact an employee's employment.

Opportunities and challenges

Social media offers opportunities for both personal and professional growth and enables:

  • improved communication, participation, collaboration, openness and connectedness within the workplace
  • recruitment opportunitiesbusiness development and marketing opportunities
  • professional development of employees, and
  • information dissemination.

While the use of social media can be beneficial to employees personally, as well as the workplace, it can also have potentially negatively impacts on:

  • professional and commercial activities
  • brand and reputation
  • client information, and
  • confidentiality.

"Confidential information" is any information provided by a client in confidence. It is critical that employees understand their obligations arising under their employment contract and the employer's confidentiality policy.

Workplace bullying and possible harassment allegations may also arise as a consequence of social media usage. While employees are personally liable for their actions, those actions may result in adverse action claims or, in circumstances where an employee has been "let go" following a social media-related incident, an unfair dismissal claim against the employer.

Social media policy

Employers should clearly articulate what does, and does not, constitute appropriate social media use in a social media policy. This extends to the timing of any employee's use of social media, for example, an employer can prohibit social media use or limit the channels that can be used during working hours.

Ultimately, the degree of intrusion on workers' privacy contemplated by any social media policy should reflect the employer seeking to protect its business interests and reputation.

Practical tips

To effectively manage the risks associated with social media, employers should:

  • implement a social media policy and ensure it remains up-to-date with technological advances by nominating a review timeframe
  • consider restricting use of social media channels during working hours to maintain workplace productivity
  • identify social media platforms to encourage in the workplace and acceptable uses of those platforms for business purposes
  • highlight to employees the risks to their employment regarding their personal use of social media channels, including that posting offensive, derogatory and discriminatory comments about the employer or threatening or insulting comments about other employees constitutes serious misconduct, which may lead to termination of employment
  • monitor social media activity to guard against brand-damaging posts appearing on social media—it is particularly important to monitor employee activity when the employer is featured in the media
  • ensure the social media and IT policies make it clear that employees waive their right to privacy regarding anything created, stored or received via the company's IT system, and
  • advise employees that their failure to remove a post, tweet or other comment, when reasonably directed to do so, will constitute a valid reason for termination of employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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